Shawn s. v. Superior Court

 

 

 

 

 

 

 

 

 

Filed 6/24/13  Shawn s. v. Superior Court CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
ONE

 

 

 
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SHAWN S.,             Petitioner, v. THE SUPERIOR COURT OF HUMBOLDT COUNTY,             Respondent; HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES et al.,             Real Parties in Interest.

A138265         (Humboldt County       Super. Ct. No. JV040182)

 

>MEMORANDUM OPINIONhref="#_ftn1" name="_ftnref1" title="">[1]

            Shawn S.
(Father) is the father of Ethan S. (now age 11).  Ethan was the subject of a September 2004 href="http://www.fearnotlaw.com/">dependency petition, based on an
allegation of caretaker absence or incapacity. 
(Welf. & Inst. Code, § 300, subd. (g).)href="#_ftn2" name="_ftnref2" title="">>[2]  At the time, Father was unable to provide for
his son because he was participating in a residential
drug treatment program.  Ethan was
found to be a dependent of the court in November 2004.  Father was offered reunification services
with a case plan that required him to complete his inpatient substance abuse
program and follow all recommendations for aftercare.  Father successfully completed his treatment
program and the dependency was terminated in February 2006.

            On June 3, 2011, a second dependency
petition was filed alleging that Father was frequently consuming alcohol in the
home to the point of passing out.  He had
also physically abused Ethan when he was drunk.

            At the
jurisdiction hearing held on July 28,
2011, the juvenile court sustained the petition as amended.  The jurisdiction report filed by the Humboldt
County Department of Health & Human Services (Department) concluded that
Father “has unaddressed alcohol issues that render him unable or unwilling to
provide adequate care for his son.”  A
supplemental report stated that Father had been arrested on July 12, 2011, and charged with
stealing a bottle of tequila from a supermarket.  At the time of his arrest, he had another
individual’s prescription medication in his pocket.

            At the
uncontested disposition hearing, held on August 23, 2011, Ethan was again declared a dependent of
the juvenile court.  The court found
Father’s unaddressed substance abuse issues rendered him unable to provide
regular care or supervision for the child. 
Reunification services were ordered for Father.

            At the
six-month status review hearing, the Department reported that Ethan was doing
well in his placement in the home of his paternal grandfather.  Father had completed a parenting class and
was participating in the Alcohol and Other Drugs program (AOD).  He had approximately three months left of a
52-week alcohol-abuse program called HART. 
He had served his jail time for the shoplifting charge and had completed
his community service.  He had moved into
a clean and sober house.  Visitation was
reportedly going well.  However, there
were concerns that Father was misusing his prescription medications, possibly
mixing them with alcohol or trading them for alcohol.  The court found returning Ethan to Father was
not appropriate at that time, as Father still needed to stabilize his
addiction.

            The
Department’s report filed for the 12-month status review hearing notes that
Father was kicked out of a clean and sober house in April 2012 after sustaining
three positive tests for alcohol.  He had
moved into another clean and sober house and had not had any positive tests as
of the date of the report, which was September
4, 2012.  He had completed
the HART program and was participating in weekly 12-step program meetings and
activities.  He was also participating in
weekly therapy with Ethan and was trying to obtain housing.  Ethan continued to do well in his
grandfather’s home and reportedly had expressed concerns about returning to his
father’s care.  The Department
recommended the court order six more months of reunification services.

            At the
12-month review hearing held on September 4, 2012, the juvenile court adopted
the findings and orders recommended by the Department.  Father’s reunification services were
continued.

            A contested
18-month review hearing was held on March 27, 2013.  The Department’s report prepared for this
hearing notes Ethan had left a message with a social worker stating that he
wished to live with Father.  However,
Father’s voice could be heard in the background coaching Ethan on what to
say.  Subsequently, the boy reported that
he wanted to stay with his grandfather. 
Ethan also stated that during the last six months there had been several
incidents where Father was under the influence during their visits and Ethan
had contacted his grandfather to pick him up early.  In October 2012, Father had sold some items
to a pawn shop and when he received the money asked Ethan if it would be ok for
him to buy alcohol.  That same month,
they were at a movie and Father pulled a bottle of alcohol out in the theater
and asked Ethan not to tell anyone. 
Father had been arrested for public intoxication on November 28,
2012.  A police report regarding the
incident states Father was so intoxicated that he could not walk, stand up, or
communicate his name.  The social worker
reported that Father had left numerous phone messages rambling about things that
did not make sense.  He appeared to be
under the influence as his speech was slurred. 
At the hearing, the social worker testified that Ethan’s grandfather,
who is also Father’s employer, had reported on numerous occasions that Father
appeared to be under the influence while he was at work.  The last time he reported this was about a
month prior to the hearing.

            The
juvenile court agreed with Father’s attorney that Father had done everything
the Department had asked him to do over the past 18 months.  However, the plan had not been successful.  In particular, he had suffered two
alcohol-related arrests, and his son had reported incidents in which he had
been drinking alcohol in his presence. 
The court stressed that Ethan needed to be in a safe, alcohol-free home
and that the grandfather was able to take care of the child’s needs.  The court concluded Father had completed his
case plan, but his behaviors had not changed and he was still unable to provide
a safe home for Ethan.  The court
scheduled a permanency planning hearing pursuant to section 366.26.

            On May 2,
2013, Father filed the instant petition for an extraordinary writ in this court
seeking an order directing the juvenile court to vacate its section 366.26
order and restore reunification services. 
Father contends the lower court erred in finding that returning Ethan to
him would create a substantial risk of detriment to the child’s
well-being.  He also asserts the court
abused its discretion in denying him additional reunification services because
the finding that he received reasonable reunification services is not supported
by clear and convincing evidence.  The factual circumstances underlying Father’s
claims of error are known to the parties and are summarized in Father’s
memorandum of points and authorities in support of his petition.

            We apply
the substantial evidence test to
determine whether the record shows clear and convincing evidence of “a
substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor . . . and there are no reasonable
means by which the minor’s physical health can be protected without removing
the minor from the [parent’s] physical custody.”  (§ 361, subd. (c)(1); In re Henry V. (2004) 119 Cal.App.4th 522, 529.) 

            We are
aware that a parent need not be perfect to regain custody of a detained
child.  (David B. v. Superior Court (2004) 123 Cal.App.4th 768,
789–790.)  We also acknowledge that
Father substantially complied with the Department’s requirements.  But in the context of persistent long-term
alcoholism, relapse—especially without prompt acknowledgment—is a significant
factor supporting the juvenile court’s rulings. 
Because his alcohol problem had led to two arrests during the pendency
of this proceeding, and because there was credible testimony that Father’s
alcohol use was ongoing in spite of the fact that he did not have any recent
positive tests, there is substantial evidence that his active use of alcohol
would place Ethan at risk of emotional and physical harm were he to be placed
in Father’s custody. 

            As to
Father’s second claim, the law governing the provision of reunification
services was summarized in Tracy J. v.
Superior Court (2012) 202 Cal.App.4th 1415: “Family reunification services
play a critical role in dependency proceedings. 
[Citations.]  Reunification
services should be tailored to the particular needs of the family. . . .  [¶] The ‘adequacy of reunification plans and
the reasonableness of the [Agency’s] efforts are judged according to the
circumstances of each case.’ 
[Citation.]  To support a finding
reasonable services were offered or provided, ‘the record should show that the
supervising agency identified the problems leading to the loss of custody,
offered services designed to remedy those problems, maintained >reasonable contact with the parents
during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance
proved difficult . . . .’ 
[Citation.]  ‘The standard is not
whether the services provided were the best that might be provided in an ideal
world, but whether the services were reasonable under the circumstances.’  [Citation.]” 
(Id. at pp. 1425–1426.)  We review the juvenile court’s finding of
reasonableness under the substantial evidence test.  (Amanda
H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1346.)

            We find
substantial evidence to support the trial court’s conclusion that the services
provided by the Department were reasonable. 
In arguing services were inadequate, Father claims the Department’s
social worker should have asked him to re-engage in AOD after his arrest.  He also asserts she should have asked him to
do residential treatment and should have done more to resolve any issues she
had with his participation in therapy. 
Yet Father does not state what benefit he believes these additional
measures would have given him.  We note
there is no dispute that Father substantially complied with all the
requirements of his case plan.  These
requirements were comprehensive, and Father’s efforts to comply should not be
discounted.  The problem here is not that
the services were inadequate or unreasonable. 
Instead, the problem is that Father, for whatever reason, remains unable
to maintain sobriety.   

            Father’s
petition for an extraordinary writ is denied on the merits.  (See Kowis
v. Howard (1992) 3 Cal.4th 888, 894.) 
The decision is final in this court immediately.  (Cal. Rules of Court, rules 8.452(i),
8.490(b)(3).)  Father’s request to stay
the hearing under section 366.26 is denied.

 
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	__________________________________ Dondero, Acting P. J.
We concur:    __________________________________ Banke, J.   __________________________________ Sepulveda, J.*

 

 

*
Retired Associate Justice of the Court of Appeal, First Appellate District,
Division Four, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.